Information Note on the Court’s case-law 224
December 2018
Hasan Köse v. Turkey - 15014/11
Judgment 18.12.2018 [Section II]
Article 2
Positive obligations
Suspension of pronouncement of judgment against police officer found guilty of causing life-threatening injury by use of excessive force: violation
Article 46
Article 46-2
Execution of judgment
General measures
Respondent State required to ensure accountability of State agents found guilty of unlawful killing or ill-treatment in cases where pronouncement of judgments against them is suspended
Facts – The applicant was shot by a police officer and sustained a life-threatening injury, leaving him permanently disabled. In the ensuing criminal proceedings, the domestic court concluded, contrary to the defendant police officer’s allegations, that there had been no scuffle between the police officer and the applicant at the time of the shooting, and found the police officer guilty of causing a life-threatening injury by excessive use of force. It sentenced the police officer to five months’ imprisonment but suspended the pronouncement of the judgment in accordance with Article 231 of the Criminal Code of Procedure. The application of the provision deprived the judgment of all its legal consequences, including the sentence, on condition that the defendant police officer abided by the supervision order.
Law
Article 2 (substantive limb): By its decision, the domestic court had used its power of discretion to lessen the consequences of a serious criminal act, rather than to show that such acts could in no way be tolerated. The Court had already held in a number of cases that the procedure regulated by Article 231 of the Criminal Code of Procedure, permitting suspension of the pronouncement of judgments concerning agents of the State, resulted in impunity of the perpetrators. Given the above-mentioned, the criminal-law system, as it had been applied in the present case, had been far from rigorous and had little deterrent effect capable of ensuring the effective prevention of unlawful acts, such as those complained of by the applicant. Consequently there had been a violation of Article 2 of the Convention.
Conclusion: violation (unanimously).
Article 46: The Court had examined a number of comparable cases against Turkey in which State agents found guilty of unlawful killing or ill-treatment had remained unpunished when the pronouncement of their convictions was suspended. In those cases the Court had found violations of Article 2 or 3 of the Convention on the grounds that the procedure under Article 231 of the Criminal Code of Procedure, permitting the pronouncement of judgments to be suspended, could create an atmosphere of impunity for agents of the State who perpetrated such serious offences. The application of that procedure in such cases was thus incompatible with the requirement under Articles 2 and 3 of the Convention to ensure the accountability of State agents. In order to execute the present judgment in accordance with its obligations under Article 46 of the Convention, the respondent State would have to adopt general measures to prevent similar violations in the future. To that end, and without prejudice to any other measures that Turkey might have envisaged, the Court considered that, in order to eliminate this problem, steps had to be taken to ensure that the procedure of suspending the pronouncement of judgments was used in accordance with the requirements under Articles 2 and 3 of the Convention. This particularly applied to cases concerning deliberate use of lethal or potentially lethal force by State agents, in order to ensure that the criminal-law protection would in practice both be effective and act as a deterrent.
Article 41: EUR 40,000 in respect of non-pecuniary damage and EUR 28,000 in respect of pecuniary damage.
(See also Eski v. Turkey, 8354/04, 5 June 2012; Taylan v. Turkey, 32051/09, 3 July 2012; Böber v. Turkey, 62590/09, 9 April 2013; Kasap and Others v. Turkey, 8656/10, 14 January 2014; Ateşoğlu v. Turkey, 53645/10, 20 January 2015; and Çalışkan v. Turkey (dec.), 47936/11, 1 December 2015)
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This summary by the Registry does not bind the Court.
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